Anil Kumar Thakur vs M/S Babys Day Care & Learning ...
2012 Latest Caselaw 7208 Del

$~9
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CS(OS) 2638/2012
ANIL KUMAR THAKUR                                           ..... Plaintiff
                               Through Mr. Sameer Vashisht with Mr.Abhinav
                                          Sharma, Advs.
                      versus
M/S BABYS DAY CARE & LEARNING CENTRE PVT
LTD                                                        ..... Defendant
                               Through Nemo.
        CORAM:
         HON'BLE MR. JUSTICE KAILASH GAMBHIR

                      ORDER

% 17.12.2012

1. The plaintiff has filed the present suit for recovery of possession, rent and

damages. Counsel for the plaintiff submits that the plaintiff is the owner and

landlord of lower and ground floor of the residential premises bearing No.

B-6/16, Safdarjung Enclave, New Delhi admeasuring about 4475.63 sq.ft.

more specifically shown in green colour in the site plan attached with the

plaint. The defendant was inducted in the said premises as a tenant with

effect from 1st April, 2012, on month to month basis, on a monthly rent of

Rs. 3,50,000/-. It is the case of the plaintiff that the said premises was let out

by the plaintiff in favour of the defendant for running a play school, subject

to the defendant obtaining necessary permissions form the MCD. It is also

the case of the plaintiff that on 4th April, 2012 the defendant had deposited

an amount of Rs. 10,50,000/- vide cheque No. 736202 to the plaintiff

1 of 6 towards the interest free security deposit, which is equivalent to three

months rent and at the same time had also paid an amount of Rs. 3,50,000/-

vide cheque No. 736203 dated 4th April, 2012 towards the advance rent for

the month of April, 2012. The defendant had further tendered post

datedcheque for an amount of Rs. 7,00,000/- vide cheque No. 534759 dated

8th May, 2012 towards the advance rent for the months of May and June,

2012. The defendant gave another cheque vide cheque No. 534758 dated 8 th

May, 2012 for an amount of Rs. 1,83,750/- after the adjustment of TDS and

service tax etc. The defendant had also issued a separate cheque vide cheque

No. 534760 dated 8th May, 2012 for an amount of Rs. 1,00,000/- towards

the registration expenses for getting the lease deed registered. It is also the

case of the plaintiff that all the three cheques when presented by the plaintiff

to his bank, were returned dishonoured. It is also the case of the plaintiff that

the defendant had issued fresh cheques in place of the said

dishonouredcheques for the same amount vide the details as disclosed in

para 6 of the plaint. It is also the case of the plaintiff that the defendant had

also handed over another cheque dated 21st May, 2012 for an amount of Rs.

2,88,750/- towards the rent for the month of May, 2012 after adjusting the

TDS and service tax etc. These cheques issued by the defendant were again

dishonoured and thereafter the plaintiff had served a legal notice dated 11th

June, 2012 thereby calling upon the defendant to make the payment of the

aforesaid outstanding amount within a period of 15 days from the receipt of

2 of 6 the notice. It is also the case of the plaintiff that on receiving the notice, the

defendant again replaced all the aforesaid cheques and issued fresh cheques

in terms of the details given by the plaintiff in para 9 of the plaint. As per

the case of the plaintiff these five cheques were again dishonoured with the

remarks on the bank memo "payments stopped". Taking account of such a

conduct on the part of the defendant, the plaintiff served another legal notice

dated 12.07.2012 on the defendant for terminating the tenancy of the

defendant thereby calling upon it to vacate the suit premises within a period

of 15 days and also to pay a sum of Rs. 15,61,250/- towards the arrears of

rent along with 18% interest within a period of 15 days. It is also the case of

the plaintiff that despite service of the legal notice dated 12.7.2012, the

defendant neither vacated the premises nor paid the arrears of the rent

amount. On the failure of the defendant to accede to the request of the

plaintiff, the plaintiff was left with no option but to file the present suit.

2. The plaintiff has proved the averments made in the plaint through the

evidence of the plaintiff himself who entered the witness box as PW1. PW1

in his evidence has proved copy of the lease deed dated 4.4.2012 as Exhibit

PW1/1, original cheques dated 8.5.2012 for Rs. 7,00,000/- towards advance

rent for the months of May and June, 2012 with return memo as Exhibit PW

1/2, original cheques along with return memos dated 8.5.2012 for Rs.

1,83,000/- and Rs. 1,00,000/- as Exhibit PW 1/3 and Exhibit PW 1/4

respectively, original cheques dated 21.5.2012 along with return memos

3 of 6 dated 24.5.2012 for Rs. 7,00,000/-, Rs. 1,83,750/- and Rs. 1,00,000/- as

Exhibit PW 1/5, Exhibit PW 1/6 and Exhibit PW 1/7 respectively, original

cheque bearing No. 004441 dated 21.5.2012 with return memo dated

24.5.2012 for Rs. 2,88,750/- as Exhibit PW 1/8, letter dated 14.6.2012 as

Exhibit PW 1/9, replaced original cheques dated 20.6.2012 with return

memos dated 26.6.2012 for Rs. 7,00,000/- for Rs. 1,83,750/- Rs. 1,00,000/-,

Rs. 2,88,750/- and Rs. 2,88,750/- as Exhibit PW 1/10, Exhibit PW 1/11,

Exhibit PW 1/12, Exhibit PW 1/13 and Exhibit PW 1/14 respectively, copy

of legal notice dated 12.7.2012 with proof of service as Exhibit PW 1/15

(colly), reply dated 23.7.2012 as Exhibit PW 1/16. The said evidence of the

plaintiff, PW1, remained un-rebutted and unchallenged and in the absence

of any challenge to the said testimony of the plaintiff there is no reason to

disbelieve the deposition of the PW1. The defendant has failed to file the

written statement and, therefore, the averments of the plaintiff also remained

uncontroverted. In his evidence the plaintiff has proved on record that the

subject premises were let out by him in favour of the defendant on a

monthly rental of Rs. 3,50,000/- and amount of Rs. 10,50,000/- was paid by

the defendant to the plaintiff towards the security which was equivalent to

the amount of three months rent. The defendant has failed to pay the arrears

of the rent w.e.f. May, 2012 @ Rs. 3,50,000/- per month. The plaintiff,

PW1, in his deposition has proved that the various cheques issued by the

defendant were returned dishonoured. The said dishonouredcheques issued

4 of 6 by the defendant clearly prove that the defendant failed to pay the arrears of

rent amount to the plaintiff and continued to enjoy the possession in the

tenanted premises at the same time. The plaintiff terminated the tenancy of

the defendant vide legal notice dated 12.07.2012 and the said legal notice

was also duly acknowledged by the defendant through its reply dated

23.7.2012.

3. Having failed to vacate the plaintiff's premises after termination of the

tenancy and also having failed tocontest the present suit, the plaintiff is

entitled to the decree of possession with respect to the premises bearing No.

B-6/16, Safdarjung Enclave, New Delhi. The plaintiff is also entitled to

recover the rent @ Rs. 3,50,000 per month for the months of May 2012 to

July 2012. The plaintiff is further entitled to recover an amount of Rs.

1,73,040 with respect to the service tax for the months of April 2012 to July

2012. The plaintiff has claimed damages @ Rs. 5 lakhs per month w.e.f. 1 st

August, 2012 till the actual handing over of the said premises, but since the

plaintiff has not led any evidence to substantiate the said amount of

damages, the Court is not inclined to grant damages at the said rate as

claimed by the plaintiff but certainly the plaintiff is entitled to damages at

the rate of Rs.3,50,000 per month w.e.f. 1st August 2012 till date of handing

over of the possession.

4. The suit filed by the plaintiff for the recovery of possession of the

premises bearing No. B-6/16, Safdarjung Enclave, New Delhi is accordingly

5 of 6 decreed in favour of the plaintiff and against the defendant. A decree for

recovery of rent totaling upto Rs.10,50,000 is passed in favour of the

plaintiff and against the defendant. A decree for the recovery of Rs.

1,73,040 with respect to the service tax for the months of April 2012 to July

2012 is also passed in favour of the plaintiff and against the defendant. The

plaintiff is also granted a decree for an amount of Rs. 3,50,000/- towards

damagesw.e.f. 1st August 2012 till date of handing over of the possession. A

decree for an Interest @ 18% per annum on the outstanding amount of

arrears of rent is also granted in favour of the plaintiff and against the

defendant. Costs of the suit are also awarded in favour of the plaintiff and

against the defendant.

5. Decree sheet be drawn up accordingly.

KAILASH GAMBHIR, J DECEMBER 17, 2012 rkr

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